Lisa Madigan
All URN FY (iF NERAI,
The Honorable Dorothy Gunn
Illinois Pollution Control Board
James R
. Thompson Center, Ste . 11-500
100 West Randolph
Chicago, Illinois 60601
Dear Clerk Gunn :
Enclosed for filing please find the original and one copy of a Notice of Filing, Motion for
Relief from Hearing Requirement and Stipulation and Proposal for Settlement in regard to the
above-captioned matter
. Please file the originals and return file-stamped copies to me in the
enclosed envelope
.
OFFICE OF THE ATTORNEY GENERAL
STATE OF ILLINOIS
January 3, 2007
Re:
People v. Lake Pointe Estates, LLC
PCB No. 06-132
1001 Easr Main, Carhondalc, Illinois 62901 • (618) 529-6400 • TTY . (618) 529-6403
•
Fax
: (618) 529-6416
RECE IVED
CLERKS OFFICE
f'''
1? 0 F
; 2007
Pollution
STATE OF
Control
ILLINOIS
Board
Thank you for your cooperation and consideration .
Very truly yours,
' Jennifer onkowski
Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
(217) 782-9031
JB/pp
Enclosures
500 South Second Street, Springfield, Illinois 62706 • (217) 782-1090 • TTY : (217) 785-2771 • Fax : (217) 782-7046
100 West Randolph Street, Chicago, Illinois 60601 •
(312) 814-3000 • TTY: (312) 814-3374 • Fax : (312) 814-3806
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
RECEIVEDCLERK'S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS,
)
" 'O 0 r 200?
Complainant,
STATE OF ILLINOIS
)
Pollution Control
Board
vs .
)
PCB No . 06-132
(Enforcement)
LAKE POINTE ESTATES LLC, an
)
Illinois limited liability corporation,
)
Respondent .
)
NOTICE OF FILING
To:
Lake Pointe Estates LLC
c/o Tim Timoney
Attorney at Law
808 South Second Street
Springfield, IL 62704
PLEASE TAKE NOTICE that on this date I mailed for filing
with the Clerk of the Pollution
Control Board of the State of Illinois, a MOTION FOR RELIEF
FROM HEARING REQUIREMENT
and STIPULATION AND PROPOSAL FOR SETTLEMENT, copies of which
are attached hereto and
herewith served upon you
.
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN,
Attorney General of the
State of Illinois
MATTHEW J
. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY :
(JENNIFER BONKOWSKI
Assistan Attorney General
'Environmental Bureau
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated
: January 3, 2007
CERTIFICATE OF SERVICE
I hereby certify that I did on January 3, 2007, send by First Class Mail, with postage
thereon fully prepaid, by depositing in a United States Post Office Box a true and correct copy
of the following instruments entitled NOTICE OF FILING, MOTION FOR RELIEF FROM
HEARING REQUIREMENT and STIPULATION AND PROPOSAL FOR SETTLEMENT :
To :
Lake Pointe Estates LLC
c/o Tim Timoney
Attorney at Law
808 South Second Street
Springfield, IL 62704
and the original and ten copies by First Class Mail with postage thereon fully prepaid of the
same foregoing instrument(s) :
To :
Dorothy Gunn, Clerk
Illinois Pollution Control Board
James R. Thompson Center
Suite 11-500
100 West Randolph
Chicago, Illinois 60601
A copy was also sent by First Class Mail with postage thereon fully prepaid to :
Carol Webb
Hearing Officer
Illinois Pollution Control Board
1021 North Grand Avenue East
Springfield, IL 62794
JENNIFER BO KOWSKI
Assistant Attorn y General
This filing is submitted on recycled paper .
BEFORE THE ILLINOIS POLLUTION
CONTROL BOARD
RECEIVEDCLERK'S
OFFICE
PEOPLE OF THE STATE OF ILLINOIS, )
Complainant,
)
vs.
)
PCB No . 06-132
(Enforcement
- Water)
LAKE POINTE ESTATES LLC, an
)
Illinois limited liability corporation,
)
Respondent
.
)
MOTION FOR RELIEF FROM HEARING REQUIREMENT
NOW COMES Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA
MADIGAN, Attorney General of the State of Illinois, and pursuant to Section 31(c)(2) of the
Illinois Environmental Protection Act
("Act"), 415 ILCS 5/31(c)(2) (2004), moves that the Illinois
Pollution Control Board grant the parties in the above-captioned matter relief from the hearing
requirement imposed by Section 31(c)(1) of the Act, 415 ILCS 5/31(c)(1) (2004)
. In support of
this motion, Complainant states as follows
:
1 .
The parties have reached agreement on all outstanding issues in this matter
.
2.
This agreement is presented to the Board in a Stipulation and Proposal for
Settlement, filed contemporaneously with this motion
.
3.
All parties agree that a hearing on the Stipulation and Proposal for Settlement is
not necessary, and respectfully request relief from such a hearing as allowed by Section
31(c)(2) of the Act, 415 ILCS 5/31(c)(2) (2004)
.
1
JAi
0 '
2007
Pollution
STATE OF
Control
ILLINOISBoard
WHEREFORE, Complainant, PEOPLE OF THE STATE OF ILLINOIS, hereby requests
that the Board grant this motion for relief from the hearing requirement set forth in Section
31(c)(1) of the Act, 415 ILCS 5/31(c)(1) (2004) .
Respectfully submitted,
PEOPLE OF THE STATE OF ILLINOIS
LISA MADIGAN
ATTORNEY GENERAL
500 South Second Street
Springfield, Illinois 62706
217/782-9031
Dated : January 3, 2007
2
MATTHEW J. DUNN, Chief
Environmental Enforcement/Asbestos
Litigation Division
BY: .r'
~'
'S Lf,7H of
/JENNIFE~' BONKOWSKI
Environm ntal Bureau
Assistant Attorney General
BEFORE THE ILLINOIS POLLUTION CONTROL BOARD
PEOPLE OF THE STATE OF ILLINOIS,
)
Complainant,
)
v.
)
LAKE POINTE ESTATES, LLC,
)
an Illinois limited liability company,
)
Respondent .
)
STIPULATION AND PROPOSAL FOR SETTLEMENT
Complainant, PEOPLE OF THE STATE OF ILLINOIS, by LISA MADIGAN, Attorney
General of the State of Illinois, the Illinois Environmental Protection Agency ("Illinois EPA"), and
LAKE POINTE ESTATES, LLC, an Illinois limited liability company, ("Respondent" or "Lake
Pointe"), have agreed to the making of this Stipulation and Proposal for Settlement ("Stipulation")
and submit it to the Illinois Pollution Control Board ("Board") for approval
. The parties agree that
the statement of facts contained herein represents a fair summary of the evidence and testimony
which would be introduced by the parties if a hearing were held
. The parties further stipulate that
this statement of facts is made and agreed upon for purposes of settlement only and that neither
the fact that a party has entered into this Stipulation, nor any of the facts stipulated herein, shall
be introduced into evidence in any other proceeding regarding the claims asserted in the Complaint
except as otherwise provided herein
.
If the Board approves and enters this Stipulation,
Respondent agrees to be bound by the Stipulation and Board Order and not to contest their validity
in any subsequent proceeding to implement or enforce their terms
.
1
RER
'S OFFICE
2007
STATE OF ILLINOIS
PCB
(Water-Enforcement)No
. 06-132
Pollution
Control
Board
I . JURISDICTION
The Board has jurisdiction of the subject matter herein and
of the parties consenting hereto
pursuant to the Illinois Environmental Protection Act ("Act"),
415 ILCS 5/1 et seq . (2004)
.
II
. AUTHORIZATION
The undersigned representatives for each party certify that
they are fully authorized by the
party whom they represent to enter into the terms and conditions
of this Stipulation and to legally
bind them to it .
Ill . STATEMENT OF FACTS
A.
Parties
On January 18, 2006, a Complaint was filed on behalf of the
People of the State of
Illinois by Lisa Madigan, Attorney General of the State
of Illinois, on her own motion and upon the
request of the Illinois EPA, pursuant to Section 31
of
the Act, 415 ILCS 5/31(2004), against the
Respondent .
2 .
The Illinois EPA is an administrative agency of
the State of Illinois, created pursuant
to Section 4
of the Act, 415 ILCS 5/4 (2004) .
3.
At all times relevant to the Complaint, Respondent was
and is an Illinois limited
liability company in good standing
.
B.
Site Description
At times relevant to the Complaint, Respondent was engaged
in the development
of
the "Lake Pointe Subdivision" in Springfield, Sangamon
County, Illinois
.
2 .
The Illinois EPA had issued construction permits to Lake
Pointe Estates LLC for the
2
installation
of 2,002 feet of sanitary sewer for plats 4 and
5 on April 12, 2002, of 1,030 feet of
sanitary sewer for plat 7 on May 2, 2003, and 864 feet of sanitary
sewer for plat 8 on August 15,
2003
. Each construction permit included
the following special condition
: "The Permittee to
Construct shall be responsible for obtaining
an NPDES Storm Water Permit prior to initiating
construction if construction activities associated with this
project will result in the disturbance of one
(1) or more acres total land area ."
3.
Subsequent to April 2002, and continuing through at least
August 2005, there
were ongoing construction activities at the subdivision
including clearing, grading, and excavating
that resulted in land disturbances of greater than one acre
. The measures or controls provided to
prevent or minimize pollution from storm water runoff at the
subdivision were inadequate . Plats 4
and 5 are approximately 11
.9 acres in total land area .
Plats 7 and 8 are approximately 13
.7 acres
in total land area .
4
.
After the company submitted applications and proposed pollution prevention
plans to the Illinois EPA, the Illinois EPA issued storm water NPDES
permits to Lake Pointe Estates
LLC for plats 4, 5 and 7 on July 3, 2003, and for plat 8 on October
14, 2003
. Each permit required
the implementation of specified site stabilization and management practices to control storm
water
runoff and the continuation of maintenance, monitoring and
inspections to ensure the effectiveness
of the measures or controls provided
.
Allegations of Non-Compliance
Complainant contends that the Respondent has violated
the following provisions of the Act
and Board regulations :
Count I :
C
.
Commencing on some date prior to April 2002, and
continuing until subsequent site stabilization via the
implementation of a storm water pollution prevention
plan and/or natural vegetative processes and other
means, by failing to maintain adequate erosion
controls at its site as required by its NPDES Permit,
3
Lake Pointe Estates LLC has caused, threatened or
allowed the discharge of any contaminant into the
waters of the State in violation of its NPDES permit,
and has thereby violated Section 12(f) of the Act, 415
ILCS 5/12(f) (2004), as well as Section 309
.102(a) of
the Board's Water Pollution Regulations, 35 III
. Adm .
Code 309
.102(a) .
D .
Admission of Violations
The Respondent neither admits nor denies the violations alleged in the Complaint filed in
this matter and referenced herein
.
E.
Compliance Activities to Date
Lake Pointe has adequately stabilized Plats 4, 5, 7, and 8
.
IV
. APPLICABILITY
This Stipulation shall apply to and be binding upon the Complainant and the Respondent,
and any officer, director, agent, or employee of the Respondent, as well as any successors or
assigns of the Respondent
. The Respondent shall not raise as a defense to any enforcement
action taken pursuant to this Stipulation the failure of any of its officers, directors, agents,
employees or successors or assigns to take such action as shall be required to comply with the
provisions of this Stipulation
.
No change in ownership, corporate status or operator of the facility shall in any way alter
the responsibilities of the Respondent under this Stipulation and Proposal for Settlement
. In the
event of any conveyance of title, easement or other interest in the facility, the Respondent shall
continue to be bound by and remain liable for performance of all obligations under this Stipulation
.
4
2.
In the event that the Respondent proposes to sell or transfer any real property or operations
subject to any Order accepting and adopting the terms of this Stipulation and Proposal for
Settlement, the Respondent shall notify the Complainant 30 days prior to the conveyance of title,
ownership or other interest, including a leasehold interest in the facility or a portion thereof
. The
Respondent shall make the prospective purchaser or successor's compliance with any Order
accepting and adopting the terms of this Stipulation a condition of any such sale or transfer and
shall provide a copy of this Stipulation and any Order accepting and adopting the terms of this
Stipulation to any such successor in interest
. This provision does not relieve the Respondent from
compliance with any regulatory requirement regarding notice and transfer of applicable facility
permits .
V
. COMPLIANCE WITH OTHER LAWS AND REGULATIONS
This Stipulation in no way affects the responsibilities of the Respondent to comply with any
other federal, state or local laws or regulations including, but not limited to, the Act and the Board
regulations, 35 III . Adm
. Code, Subtitles A through H
.
VI
. IMPACT ON THE PUBLIC RESULTING FROM ALLEGED NON-COMPLIANCE
Section 33(c) of the Act, 415 ILCS 5/33(c)(2004), provides as follows
:
In making its orders and determinations, the Board shall take into consideration all
the facts and circumstances bearing upon the reasonableness of the emissions,
discharges, or deposits involved including, but not limited to
:
1 .
the character and degree of injury to, or interference with the
protection of the health, general welfare and physical property of the
people ;
2 .
the social and economic value of the pollution source
;
3 .
the suitability or unsuitability of the pollution source to the area in
which it is located, including the question of priority of location in the
5
area involved ;
4 .
the technical practicability and economic reasonableness of reducing
or eliminating the emissions, discharges or deposits resulting from
such pollution source ; and
5 .
any subsequent compliance
.
In response to these factors, the parties state the following
:
Complainant contends that the injury to, or interference with, the protection of the
health, general welfare, and physical property of the People would be characterized as causing,
threatening or allowing the discharge of any contaminant into waters of the State in violation of
NPDES permit requirements
. As to the degree of injury, the potential for harm to aquatic life due
to increased sedimentation was present
;
2.
The parties agree that Respondent's site is of social and economic benefit
;
3.
Respondent's site is suitably located
;
4.
The parties agree that complying with the Act and regulations is technically
practicable and economically reasonable
; and
5.
Respondent implemented measures subsequent to the alleged violations that
are the subject of the Complaint in this matter in order to operate in compliance with the Act and
the associated regulations .
VII
. CONSIDERATION
OF SECTION 42(h) FACTORS
Section 42(h) of the Act, 415 ILCS 5/42(h)(2004), provides as follows
:
In determining the appropriate civil penalty to be imposed under
. . . this Section,
the Board is authorized to consider any matters of record
in mitigation or
aggravation of penalty, including but not limited to the following factors
:
1 .
the duration and gravity of the violation
;
2.
the presence or absence of due diligence on the part of the respondent in
6
attempting to comply with requirements of this Act and regulations thereunder or to
secure relief therefrom as provided by this Act
;
3 .
any economic benefits accrued by the respondent because of delay in compliance
with requirements, in which case the economic benefits shall be determined by the
lowest cost alternative for achieving compliance ;
4 .
the amount of monetary penalty which will serve to deter further violations by the
respondent and to otherwise aid in enhancing voluntary compliance with this Act by
the respondent and other persons similarly subject to the Act
;
5 .
the number, proximity in time, and gravity of previously adjudicated violations of this
Act by the respondent ;
6 .
whether the respondent voluntarily self-disclosed, in accordance with subsection i
of this Section, the non-compliance to the Agency ; and
7 .
whether the respondent has agreed to undertake a "supplemental environmental
project," which means an environmentally beneficial project that a respondent
agrees to undertake in settlement of an enforcement action brought under this Act,
but which the respondent is not otherwise legally required to perform .
In response to these factors, the parties state as follows :
1 .
The violations occurred on some date prior to April 2002, and were resolved by the
date of the most recent Illinois EPA inspection on October 10, 2006
.
2 .
Following the Illinois EPA inspections, Respondent implemented stormwater
pollution prevention measures on an ongoing basis
.
3 .
The Respondent realized an economic benefit from noncompliance by delaying the
costs of implementing erosion control measures . Estimates regarding weekly inspections required
under the NPDES permit would yield a cost savings of at least five thousand six hundred dollars
($5,600 .00) .
4.
Complainant has determined, in this instance, that a monetary penalty of seven
thousand five hundred dollars ($7,500
.00) will serve to deter further violations and aid in future
voluntary enforcement of the Act and applicable regulations .
7
5 .
The Respondent has no prior adjudicated violations .
6 .
Self-disclosure is not at issue in this matter .
7 .
The settlement of this matter does not include a supplemental environmental project
.
VIII . TERMS OF SETTLEMENT
A.
Penalty Payment
The Respondent shall pay a civil penalty in the sum of seven thousand five hundred
dollars ($7,500 .00) within thirty (30) days from the date the Board adopts and accepts this
Stipulation . The Respondent stipulates that payment has been tendered to Respondent's attorney
of record in this matter in a form acceptable to that attorney .
Further, Respondent stipulates that
said attorney has been directed to make the penalty payment on behalf of Respondent, within thirty
(30) days from the date the Board adopts and accepts this Stipulation, in a manner prescribed
below
. The penalty described in this Stipulation shall be paid by certified check, money order or
electronic funds transfer payable to the Illinois EPA, designated to the Illinois Environmental
Protection Trust Fund and submitted to :
Illinois Environmental Protection Agency
Fiscal Services Section
1021 North Grand Avenue East
P .O. Box 19276
Springfield, IL 62794-9276
The name and number of the case and Respondent's Federal Employer Identification Number
(FEIN) shall appear on the check . A copy of the certified check, money order or record of
electronic funds transfer and any transmittal letter shall be sent to :
Peggy Poitevint
Environmental Bureau
Office of the Attorney General
500 South Second Street
Springfield, Illinois 62702
8
Thomas Andryk
Assistant Counsel
Illinois Environmental Protection Agency
1021 North Grand Avenue East
P.O . Box 19276
Springfield, Illinois 62794-9276
2 .
Pursuant to Section 42(g) of the Act, 415 ILCS 5/42(g) (2004), interest shall accrue
on any payment not paid within the time period prescribed
above at the maximum rate allowable
under Section 1003(a) of the Illinois Income Tax Act, 35 ILLS 5/1003 (2004)
. Interest on any
unpaid payment shall begin to accrue from the date the payment
is due and continue to accrue until
the date payment is received . When partial payment(s)
are made, such partial payment shall be
first applied to any interest on unpaid payment then due
and owing . All interest on payment owed
shall be paid by certified check, money order or electronic
funds transfer, payable to the Illinois
EPA, designated to the Illinois Environmental Protection
Trust Fund and delivered to the address
and in the manner described above .
3 .
For purposes of payment and collection, Respondent may be reached at the
following address :
Lake Pointe Estates, LLC
c/o Thomas Giacomini, R .A .
509 Five Forks Drive
Springfield, IL 62707
4.
In the event of default of this Section VIII .A, the Complainant
shall be entitled to all
available relief including, but not limited to, reasonable costs
of collection and reasonable attorney's
fees.
B .
Future Use
Notwithstanding any other language in this Stipulation to the contrary, and in consideration
9
of the mutual promises and conditions contained in this Stipulation, including the Release from
Liability contained in Section VIII . D, below, the Respondent hereby agrees that this Stipulation may
be used against the Respondent in any subsequent enforcement action or permit proceeding as
proof of a past adjudication of violation of the Act and the Board Regulations promulgated
thereunder for all violations alleged in the Complaint in this matter, for purposes of Section 39(a)
and (i) and/or 42(h) of the Act, 415 ILCS 5/39(a) and(i) and/or 5/42(h)(2004)
. Further, Respondent
agrees to waive any rights to contest, in any subsequent enforcement action or permit proceeding,
any allegations that these alleged violations were adjudicated .
C.
Cease and Desist
The Respondent shall cease and desist from future violations of the Act and
Board
Regulations that were the subject matter of the Complaint as outlined in Section III .C ("Allegations
of Non-Compliance") of this Stipulation .
D.
Release from Liability
In consideration of the Respondent's payment of the seven thousand five hundred dollar
($7,500
.00) penalty and any specified costs and accrued interest, to Cease and
Desist as
contained in Section VI II
.C, and upon the Pollution Control Board's acceptance and approval of the
terms of this Stipulation and Proposal for Settlement, the Complainant releases, waives
and
discharges the Respondent from any further liability or penalties for violations of the Act and Board
Regulations that were the subject matter of the Complaint herein
. The release set forth above does
not extend to any matters other than those expressly specified in Complainant's Complaint filed on
January 18, 2006
. The Complainant reserves, and this Stipulation is without prejudice to, all rights
of the State of Illinois against the Respondent with respect to all other matters, including but not
10
limited to, the following :
a.
criminal liability ;
b.
liability for future violation of state, federal, local, and common laws and/or
regulations ;
c.
liability for natural resources damage arising out of the alleged violations ; and
d
.
liability or claims based on the Respondent's failure to satisfy the requirements of
this Stipulation .
Nothing in this Stipulation is intended as a waiver, discharge, release, or covenant not to
sue for any claim or cause of action, administrative or judicial, civil or criminal, past or future, in law
or in equity, which the State of Illinois or the Illinois EPA may have against any person, as defined
by Section 3 .315 of the Act, 415 ILCS 5/3.315,
or entity other than the Respondent
.
E.
Right of Entry
In addition to any other authority, the Illinois EPA, its employees and representatives, and
the Attorney General, her agents and representatives, shall have the right of entry onto the
Respondent's site which is the subject of this Stipulation, at all reasonable times for the purposes
of carrying out inspections
. In conducting such inspections, the Illinois EPA, its employees and
representatives, and the Attorney General, her employees and representatives may take
photographs, samples, and collect information, as they deem necessary .
F .
Enforcement of Board Order
1 .
Upon the entry of the Board's Order approving and accepting this Stipulation and
Proposal for Settlement, that Order is a binding and enforceable order of the Illinois Pollution
Control Board and may be enforced as such through any and all available means .
11
2 .
Respondent agrees that notice of any subsequent proceeding to enforce the Board
Order approving and accepting this Stipulation and Proposal for Settlement may be made by mail
and waives any requirement of service of process .
3 .
The parties agree that, if the Board does not approve and accept this Stipulation and
Proposal for Settlement, then neither party is bound by the terms herein
.
4.
It is the intent of the Complainant and Respondent that the provisions of this
Stipulation and Proposal for Settlement and any Board Order accepting and approving such shall
be severable, and should any provision be declared by a court of competent jurisdiction to be
inconsistent with state or federal law, and therefore unenforceable, the remaining clauses shall
remain in full force and effect .
12
BY:
BY:
WHEREFORE, Complainant and Respondent request that the Board adopt and accept the
foregoing Stipulation and Proposal for Settlement as written .
THOMAS DAVIS, Chief
Environmental Bureau
Assistant Attorney General
ILLINOIS ENVIRONMENTAL PROTECTION
AGENCY
ROBERT MESSIN
Chief Legal Counsel
LAKE POINTE ESTATES, LLC
an Illinois limited liability company
13
DATE : (l~llt~L9~
DATE
:--6/2
?/04
PEOPLE OF THE STATE OF ILLINOIS,
LISA MADIGAN
Attorney General
State of Illinois
MATTHEW J . DUNN, Chief
Environmental Enforcement/
Asbestos Litigation Division
BY:
DATE
:
///?co
w
